Free Speech: Means, Ends, and Citizens United

(This is the second of 3 blog entries on the U.S. Supreme Court’s Citizens United decision. Yesterday’s was about what corporate citizenship requires in light of the decision. Tomorrow’s entry will look at the decision from the point of view of the vexed notion of corporate personhood).

The U.S. Supreme Court’s Citizens United decision was fundamentally right, it seems to me. I’m not a lawyer, nor a scholar of the U.S. Constitution, but from what I can see the decision was a sound one constitutionally. More importantly, for my purposes, the decision was the right one ethically. And as Glenn Greenwald at Salon rightly pointed out, you don’t have to like all of the possible consequences of this decision in order to believe that it was the right decision. (See Greenwald’s blog entry, What the Supreme Court got right.)

The law the Court struck down (the Bipartisan Campaign Reform Act or BCRA, and really the Court only struck down part of it) was problematic both in terms of ends and in terms of means. Ends vary in their moral worth, as do means; so, the ends don’t always justify the means. Some ends of course are particularly worthy, and may justify just about any means. And some means are so clearly harmless that their use is ok regardless of what your goals are. Though most of us think that consequences matter, few of us think that absolutely any means is justified in pursuit of good consequences.

So, first, what were the law’s ends, its objectives? The BCRA sought to limit corporate political speech, in order to limit the influence of powerful corporate interests in the political sphere. That first, immediate goal of limiting speech is of course worrisome in its own right, in any society that values freedom. The ultimate goal (limiting corporate influence) is problematic too. First, it’s problematic because it’s not really clear that corporate money actually exercises a catastrophic amount of influence. Indeed, some scholars have wondered Why Is There So Little Money in U.S. Politics? [pdf] (ht to Marginal Revolution). But more fundamentally, the goal of reducing corporate influence is only a good one for those who think corporate influence is (mostly? always?) a pernicious thing. That is, it requires that the corporate point of view is generally a bad one. And you’re perfectly free to think that’s the case. Certainly that’s a conclusion reached by lots of people. But it’s not a view shared by all. And ultimately the question is whether governments ought to be playing favourites, whether they should be deciding that certain points of view ought not be heard. I for one think there are individuals out there whose views are pernicious, and I would rather they not be heard. But that doesn’t mean I want the government passing laws to prevent them from speaking.

What about means? What means did the law employ? In seeking to limit the influence of powerful corporate interests in the political sphere, the law basically made it a criminal offence for corporations and unions to spend money on independent political communications in the weeks leading up to an election. In this regard, the law was both overinclusive and underinclusive. It was overinclusive in that it applied equally to very small (even single-shareholder!) corporations and nonprofits. And it was underinclusive in that it limited the political speech of wealthy corporations but not of wealthy individuals: there are no limits on how much, say, Bill Gates or Warren Buffet is allowed to spend on promoting a political candidate. The relevant section of the BCRA was a bad means to achieve its supposed ends.

So, the law sought to use clumsy and intrusive means to achieve dubious ends. So the ends pretty clearly don’t justify the means, here. When you’re messing with fundamental rights — even when you’re doing so in the pursuit of noble ends — the means you employ need to be pretty carefully targeted. From what understand, that is an acknowledged principle of constitutional law; it’s also a pretty good ethical rule of thumb. That’s why the Court’s decision was right.

5 comments so far

  1. Anonymous on

    You should read the dissent before forming an opinion, Chris. Read it, and challenge yourself with it.

  2. Chris MacDonald on

    Anonymous:

    I’ve looked at it!

    Why don’t you fill me in on which part you found convincing?

    Chris.

  3. […] in the wake of Citizens United, I did a trio of blog entries on the topic. See my 1st, 2nd, and 3rd entries. A few months earlier, I had written about Why Corporations Must Be Legal […]

  4. […] donut industry. I’ve written things that were pretty uncontroversial, as well as things that no one agreed with. And in terms of topics, I’ve covered environmental ethics, workers’ rights, corporate […]

  5. […] the wealthy having disproportionate influence in politics? Can someone who went ballistic over the Citizens United decision really be happy to see a rich guy like Steyer using his wealth (and his wealthy friends) […]


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